Immunity not to President's actions: Kanag Iswaran PC

President’s Counsel K. Kanag Iswaran yesterday countering the arguments of the respondents and the intervernient petitioners underlined the fact that the immunity conferred on the Executive President was only on his person and not on his acts or actions.

Kanag Iswaran PC appearing for TNA Leader R. Sampanthan said this before the seven-judge bench of the Supreme Court which took up for hearing the fundamental rights petitions against the dissolution of Parliament by President.

Kanag Iswaran PC said he did not propose to deal with the jungle of arguments of single instances put forward by the various respondents, on account of time constraints.

He said President’s Counsel Sanjeewa Jayawardene and the other Counsel of a similar persuasion had sought to submit to Court their interpretation of the relevant constitutional provisions on the basis of the Sinhala text of the Constitution.

Counsel said not being competent in that language, he had requested President’s Counsel Thilak Marapana and the other Counsel for the petitioners, to deal with that aspect. He informed Court that they assured him that the Sinhala version was in no way different to the English version and that he knew for a fact that the Tamil version was no different either.

He said therefore, he was responding to only the Attorney General in respect of his submissions, principally on the question of the jurisdiction of the Supreme Court to hear and determine his petition on the two grounds urged by the Attorney General, namely,

“The provisions of Article 38 (2) provide a specific mechanism ‘for the Supreme Court to exercise jurisdiction over allegations of, intentional violations of the Constitution, misconduct or abuse of power by the President;

“Dissolution of Parliament by the President, does not constitute ‘executive or administrative action’, falling within the purview of Article 126 of the Constitution.

He said the objection premised on Article 38 (2) was concerned and that it was clear that the said objection was based on the supposition that Article 38 (2) operates as an ouster of Articles 17 and 126 vis-à-vis the Fundamental Rights Jurisdiction of the Supreme Court.

Counsel said one section of the Constitution could not oust another section of the Constitution.

The Constitutional jurisdiction of the Supreme Court to grant relief for the infringement of Fundamental Rights by the Executive or Administrative action could not be ousted in the absence of a Constitutionally or valid derogation from that jurisdiction he pinpointed.

He said Ex facie the Constitution such an ouster cannot be validly asserted.

He brought to cognizance that a total ouster is found in the interpretation section of the Constitution, namely, Article 154J (2) – Public Security.

He said the said interpretation section reads as, “A Proclamation under the Public Security Ordinance or the law for the time being relating to public security, shall be conclusive for all purposes and shall not be questioned in any Court, and no Court or Tribunal shall inquire into, or pronounce on, or in any manner call in question, such Proclamation, the grounds for the making thereof, or the existence of those grounds or any direction given under this Article.”

He submitted that the Article 170, defining a judicial officer as “ ‘judicial officer’ means any person who holds office as a Judge of the Supreme Court or a Judge of the Court of Appeal; any Judge of the High Court or any Judge, presiding officer or member of any other Court of First Instance, tribunal or institution created and established for the administration of Justice or for the adjudication of any labour or other dispute but does not include a person who performs arbitrary functions or a public officer whose principal duty or duties is or are not the performance of functions of a judicial nature. No court or tribunal or institution shall have jurisdiction to determine the question whether a person is a judicial officer within the meaning of the Constitution but such question shall be determined by the Judicial Service Commission whose decision thereon shall be final and conclusive. No act of such person or proceeding held before such person, prior to such determination, shall be, deemed to be invalid by reason of such determination.”

Kanag Iswaran PC said the above ouster clauses seek to even exclude the Fundamental Rights jurisdiction of the Supreme Court and maintained that therefore, Article 38 is no ouster at all.

He said the petitioner is well within his rights to have invoked Articles 17 and 126 of the Constitution, because it is an acknowledged principle of law that there is no justification in law for holding that only one of the available remedies can be availed of and that the other consequently stands extinguished, nor can it be contended that the aggrieved party be confined to only one remedy.

He further said that passionate presentations were made on the question of the sovereignty of the People and the franchise of the People and the obligation of the President to heed that and for the Supreme Court to take note of that fact.

He mentioned that in passing that, the sovereignty of the People and who the depositories of that are is to be seen in Article 4 and that the Article 4 (a) provides that the sovereign legislative power of the People is in the Parliament and that the Article 4 (b) provides that the sovereign executive power of the People is in the President.

He maintained that therefore under the Constitution that the President cannot interfere with the legislature except as strictly provided by the Constitution.

The dissolution of the legislature must therefore strictly be in terms of the Constitution and the President is not a Monarch, he too is a creature of the Constitution. It is settled law that the official acts of the President constitute ‘executive’ actions, he said.

He submitted that the concept of ‘executive and administrative’ action is much wider than executive power.

He stated the Petitioners invoked a right given to them under Article 17 read with Article 126 read together with the proviso to Article 35 (1).

In terms of the proviso ‘anything done or omitted to be done by the President, in his official capacity’ are in fact ‘executive or administrative’ acts in terms of Article 17 and, therefore, the reference to Article 126 is made in the said proviso, he stressed.

The contention of the Attorney General that the President’s act is not ‘executive or administrative’ action is in terms of the Constitution wholly untenable, he contended.

The issue of dissolution which the Supreme Court is called upon to decide is not justiciable because it is a political question, he claimed.

He recollected that another interesting, if not intriguing, submission was about a ‘legislative driven process’ and a ‘executive driven process’.

This description, curiously, lays emphasis only on the driver and forgets the vehicle, which is Article 70 (1), he said.

Without the vehicle, the driver cannot move. Whether legislative driven or executive driven, you need to have a Proclamation, he stated.

The functionaries of the three wings, namely, the legislature, the executive and the judiciary, derive their authority and jurisdiction from the Constitution. The Constitution is the fundamental document that provides for constitutionalism, constitutional governance and also sets out morality, norms and values which are inhered in various Articles and sometimes decipherable from the constitutional silence, he said.

Its inherent dynamism makes it organic and therefore the concept of constitutional sovereignty is sacrosanct. It is extremely sacred as the authorities get their powers from the Constitution and nowhere else. It is the source, that is the supremacy of the Constitution, he highlighted.

He reminded that passionate speeches had been made, mostly political, warning the Supreme Court of the impending dangers and the like if the dissolution is not upheld. It went as far as calling the challenge to the dissolution as terrorism, he said. He recall the words of Dr. Ambedkar: “I feel that the constitution is workable; it is flexible and it is strong enough to hold the country together both in peace time and in war time. Indeed if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.”

There were 10 fundamental rights petition filed against the declaration of dissolution of Parliament by the President. Five sought to intervene to counter the main petitions.

Petitions seek a declaration that proclamation of dissolving Parliament infringes the fundamental rights.

They ask the Court for a declaration that the decisions and/or directions in the proclamation is null and void ab initio (ineffective from the beginning) and of no force or effect in law.